Scalia calls Voting Rights Act ‘racial entitlement’

Supreme Court Justice Antonin Scalia describes himself as a textualist, one who considers the Constitution’s written text — as its drafters, in his view, intended and understood it — to be his ultimate guidepost. It makes his job a lot simpler than it’s cracked up to be, he says.

“The death penalty? Give me a break, it’s easy,” the leader of the court’s conservative bloc told the American Enterprise Institute last fall as the 2012-13 term was beginning. “Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”

Which makes it even harder to fathom where Scalia was coming from last month when he dismissed a key provision of the 1965 Voting Rights Act as a “perpetuation of racial entitlement.”

The court heard arguments Feb. 27 on Section 5 of the act, which requires states and counties with a history of voting discrimination — mostly in the South, but including Monterey, Kings and Yuba counties in California — to clear all changes in their voting laws and procedures with the Justice Department or a federal appeals court. When a lawyer for Shelby County, Ala., argued that the requirement is obsolete and an infringement on state sovereignty, Solicitor General Donald Verrilli responded that Congress had extensively documented the continued need for Section 5 when it renewed the law by an overwhelming majority vote in 2006.

But Scalia saw the congressional vote as evidence that Congress was simply responding to political pressure, or perhaps to an unwillingness to look prejudiced. Noting that lawmakers had opposed the Voting Rights Act in much greater numbers in its earlier years, he said the shift to near-unanimous support was “very likely attributable to a phenomenon that is called perpetuation of racial entitlement,” which, he said, is “very difficult to get out of … through the normal political process.”

“Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?” Scalia asked. It is, he opined, “not the kind of a question you can leave to Congress” — with “you,” in this case, standing for the court.

The thing is, the Constitution’s 15th Amendment, which outlawed racial discrimination in voting and was the basis of the Voting Rights Act almost a century later, specified that “the Congress shall have power to enforce this article by appropriate legislation.” In other words, it’s the kind of question that the drafters of the amendment, by all indications, did indeed leave to Congress.

Scalia and his colleagues will have the last word on what it all means, in a ruling due by the end of June. Before that, though, the justices will look at another federal law next Wednesday when they take up a challenge to the Defense of Marriage Act, which also passed with a big majority in 1996 and denied federal benefits to same-sex couples who were legally married under the laws of their states. It’ll be interesting to see whether Scalia seems inclined to leave that question to Congress.